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By Bonnie Colby1 and Ryan Young2 Tribal Water Settlements

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By Bonnie Colby1 and Ryan Young2 Tribal Water Settlements Tribal water settlements: economic innovations for addressing water conflicts By Bonnie Colby1 and Ryan Young2 Abstract This article highlights examples of innovative approaches in regional water problem-solving contained in tribal settlements, providing readers with a sense of the possibilities that tribal participation brings to western water management. Many tribal settlements use economic incentives in ways useful to consider in a broader water management context. The article highlights economic components of several specific settlements and concludes by summarizing ways in the economic principles and incentives they illustrate can be more broadly applied in addressing water challenges. Figure 1 lists the tribal nations that are referred to in this article and shows the area where these tribes’ reservations are located. Introduction and Background The role of Native American tribal nations in the western water arena has evolved over the past several decades. Tribal participation has evolved in many regions from primarily being viewed as a litigious threat to non-In- dian water allocations, to negotiators and co-implementers of settlements that quantify tribal water rights and address regional water challenges (Deol and Colby, 2018). Along with other water management components in settlements, tribes are initiating innovations which incorporate economic incentives. Tribal nations have legal status as sovereign governments not ruled by state water law and able to enact their own regulations over water use, water quality and watershed protection. Tribal nations often have senior water entitlements that date back to the establishment of the tribal land reservation. These entitlements are more reliable during drought than junior rights held by non-Indian farms, industry and cities and this puts tribes in a unique position (Colby et al, 2005), and allows for innovations when crafting solutions to regional water problems. Native American nations have legal entitlements to water resources, recognized by U.S. courts in 1908 when the Fort Belknap Indian Community in Montana was developing a reservation irrigation project. During dry periods, there was inadequate water for the tribal project, so the U.S. government sued upstream water users on behalf of the tribe in Winters v. U.S. (Colby et al, 2005, Landry and Quinn 2007). The Supreme Court recognized 1 Professor, Department Agricultural and Resource Economics, University of Arizona 2 Graduate Research Assistant, Department Agricultural and Resource Economics, University of Arizona Page 38 WEF Vol. 16, issue no. 1 Tribal Water Settlements tribal nations have rights to use and manage water in order to fulfill the purposes of their land reservations. While tribes have strong legal entitlements to water, the quantification of those rights and provision of water sup- plies to tribal nations has been slow, costly and pain-staking, ongoing process. Seattle 1 Spokane 12 WA 4 Portland Helena MT Billings 10 OR ID Boise 3 Sheridan Idaho Falls 19 15 WY Reno Cheyenne NV Salt Lake City 9 San Francisco Denver UT CA CO 14 Las Vegas 8 7 16 Los Angeles AZ Santa Fe 21 2 20 Albuquerque 5 13 18 11 Phoenix 6 NM 17 Tucson El Paso Tribal Nations Referred to in Article 11. Quechan Tribe, Fort Yuma (1963 Arizona v. California Court Decree) 1. Blackfeet Tribe (2015 Settlement) 12. Rocky Boy’s Chippewa-Cree Indians (1999 Settlement) 2. Colorado River Indian Tribes (1963 Arizona v. California Court Decree) 13. Salt River-Pima-Maricopa Indian Community (1988 Settlement) 3. Crow Tribe (2010 Settlement) 14. Shivwits Band, Paiute Indian Tribe (2000 Settlement) 4. Fort Belknap Indian Community (2001 Settlement) 15. Shoshone-Bannock Tribes (1990 Fort Hall Settlement) 5. Fort McDowell Yavapai Nation (1990 Settlement) 16. Taos Pueblo (2010 Settlement) 6. Gila River Indian Community (2004 Settlement) 17. Tohono-O’Odham Nation (2004 Settlement) 7. Jicarilla Apache Nation (1992 Settlement) 18. White Mountain Apache Tribe (2010 Fort Apache Settlement) 8. Navajo Nation (2010 Settlement) 19. Wind River Arapahoe and Shoshone Tribes (1992 Big Horn Court Decree) 9. Nez Perce Tribe (2004 Settlement) 20. Yavapai Prescott Tribe (1990 Settlement) 10. Northern Cheyenne Tribe (1991 Settlement) 21. Zuni Tribe (2003 Settlement) Figure 1 Locations of Tribal Nations Mentioned in This Article A water settlement agreement typically involves negotiations between a tribal nation, federal agencies, states, water districts, and other water users in the area where the tribe is quantifying their water rights. Negotiated wa- ter settlements aim to resolve conflict among water users by allowing parties to specify water allocations, provide water supply assurances, and reduce litigation. Negotiated settlements with tribes have become an important part of western water institutions (Deol and Colby, 2018). Tribal water right claims are senior in priority to many water rights held by non-Indians, and so recognition and development of tribal rights threatens non-Indian water users that would be “bumped” downward in priority. This stark possibility provides impetus for negotiat- ing settlement of Indian water right claims. Since the 1970s, over three dozen tribal water right settlements have been formalized in the U.S., with Arizona and Montana settlements accounting for a large share of these (see Table 1). The Montana settlements have focused on achieving mutual state-tribal advantages such as improve- ment in water management (Crow Tribe, Blackfeet Tribe), reservoir storage and dam safety (Northern Cheyenne Tribe), and domestic water supplies (Rocky Boys Chippewa-Cree Indians). In Arizona, urban interests have been motivated to collaborate on settlements in order to enhance their long-term water supply reliability through access to tribal water. Negotiated settlements of tribal water entitlements produce a wide range of benefits, as compared to absence of a settlement and ongoing regional uncertainty and litigation over tribal rights (Colby, 2006). Settlements can contribute to addressing poor access to water resources for tribal communities and low income and high un- employment on tribal reservations, and provide some redress for historic injustices. Specific regional benefits include funding for new water projects and infrastructure improvements and improved collaboration between tribal and non-tribal water interests in addressing the water management challenges of their region. Economic development programs included in settlements stimulate local economies. Environmental provisions of settle- ments aim to restore streams, wetlands and other wildlife habitat that contribute cultural and recreational values along with other ecosystem services. Page 39 Tribal Water Settlements WEF Vol. 16, Issue no. 1 In addition to their many benefits, tribal water settlements are costly in both financial and water commit- ments. The federal government (and thus U.S. taxpayers) incurs significant financial obligations under most settlements, as do state governments, cities and other non-tribal water users. Commitments of water also are significant. Several Arizona settlements (Gila River Indian Community, Salt River Pima-Maricopa Indian Com- munity) are based on the transfer of previously decreed water rights or on federal project water from non-Indian users to an Indian community. The amount of water quantified for tribes in settlements varies greatly. Entitle- ments of over 500,000 AFY are recognized for reservations in Montana, Utah, Nevada and Idaho. Other settle- ments—located in the arid Southwest—quantify tribal water at smaller annual amounts; 40, 000 to 100,000 being a typical range in Arizona and New Mexico. Some settlements involve very small amounts of water, but include important water and economic development funds: Yavapai Prescott Tribe (Arizona), 1,550 acre-feet per year, and Shivwits Band of Paiute Indian Tribe (Utah), 4,000 acre-feet per year. The northern settlements are principally based on surface water sources, with groundwater included as a secondary source for reservation needs. Storage arrangements specified in settlements make smaller entitlements more reliable during dry years for tribal water users. The southern settlements rely on a more complex mix of water sources. Surface water is usually made available through an existing water development project, water from the CAP in most Arizona settlements. Due to heavy reliance on groundwater in the most populated areas of the state, Arizona settlements pay special attention to groundwater. Several Arizona settlements require tribal governments to place limits on tribal groundwater use in order to protect surface water rights that could be de- pleted by groundwater pumping. Some Arizona settlements add restrictions on non-tribal water users pumping water from wells located near the tribal reservation, in order to protect groundwater resources underlying tribal lands. These provisions create a buffer zone of additional protection not only for groundwater, but also for reser- vation streams and wetlands that rely on maintaining the elevation of the groundwater table. State Number of Number of Lit- Total: Settle- Tribal Water igation Cases ments Plus Rights Settle- Quantifying Court Decrees ments Tribal Rights* Arizona 9 4 13 Colorado 2 0 2 Idaho 1 1 2 Montana 6 0 6 Nevada 6 0 6 New Mexico 6 1 7 Oregon 1 0 1 Utah 2 0 2 Washington 1 4 5 Wyoming 0 1 1 Totals 34 11 45 *This column refers to litigation cases with a final court decree quantifying tribal water rights, cases that are NOT part
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